Citation NR: 9711663
Decision Date: 04/03/97 Archive Date: 04/14/97
DOCKET NO. 95-40 576 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to service connection for alcohol and drug abuse,
claimed as secondary to service-connected post-traumatic
stress disorder with depression.
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter,
Attorney-at-law
ATTORNEY FOR THE BOARD
P. J. Somelofske, Counsel
INTRODUCTION
The veteran served on active duty from September 1967 to
September 1969.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a March 1995 rating decision of the
Department of Veterans Affairs (VA), Denver, Colorado,
Regional Office (RO), that denied service connection for
alcohol and drug abuse, claimed as secondary to service-
connected post-traumatic stress disorder with depression.
In a rating decision dated in November 1993, the veteran was
awarded VA benefits pursuant to 38 C.F.R. § 4.29, due to a
period of hospitalization in February and March 1993. In
addition, this rating decision denied an evaluation in excess
of 10 percent for post-traumatic stress disorder and an
evaluation in excess of 10 percent for residuals of a shell
fragment wound of the right wrist and elbow, and proposed to
reduce the veteran’s 10 percent evaluation for residuals of a
shell fragment wound of the hips and buttocks to zero
percent. In a rating decision dated in January 1994, the RO
effectuated the reduction of the 10 percent evaluation for
residuals of a shell fragment wound of the hips and buttocks
to zero percent.
In January 1994, the veteran’s attorney submitted a notice of
disagreement with the November 1993 rating decision, and
raised additional issues for consideration. In January 1994,
the veteran submitted a notice of disagreement with the
January 1994 rating decision. Thereafter, in a rating
decision dated in March 1995, a total disability evaluation
based on individual unemployability and entitlement to
dependents educational assistance were granted, and a
10 percent evaluation was assigned for residuals of a shell
fragment wound of the hips and buttocks. In addition, this
rating decision denied increased evaluations for post-
traumatic stress disorder and residuals of a shell fragment
wound of the right wrist and elbow.
In March 1995, a statement of the case was issued pertaining
only to the issues of increased evaluations for post-traumatic
stress disorder and residuals of a shell fragment wound of the
hips and buttocks. Thereafter, a rating decision dated in
April 1995 recharacterized the veteran’s service-connected
psychiatric disorder as post-traumatic stress disorder with
depression, and denied increased evaluations for that
disability, for residuals of a shell fragment wound of the
right wrist and elbow, and for residuals of a shell fragment
wound of the hips and buttocks. In addition, the grant of a
total disability evaluation based on individual
unemployability and entitlement to dependents educational
assistance was confirmed and continued.
Subsequently, in April 1995, the veteran’s attorney submitted
a statement, to be accepted in lieu of a VA Form 9, appealing
the issues set forth in the March 1995 statement of the case.
In May 1995, the RO sent a letter to the veteran’s attorney
requesting that he clarify his April 1995 letter. Thereafter,
in July 1995, the veteran’s attorney submitted a statement
clarifying the veteran’s appeal and stated that based upon the
rating decision of March 1995, “all other issues are
considered to be ‘resolved.’” Accordingly, the issue before
the Board is most appropriately set forth on the cover page of
this decision.
In an October 1996 statement, the veteran requested that he
“be evaluated” for various disabilities related to exposure
to Agent Orange in service. These claims for service
connection have not been addressed by the RO. This matter,
therefore, is referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his attorney contend, in essence, that the RO
committed error by denying service connection for alcohol and
drug abuse, claimed as secondary to service-connected post-
traumatic stress disorder with depression. No specific
argument with respect to this issue has been offered by the
veteran or his attorney.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that that the law is dispositive
with respect to the veteran’s claim for service connection
for alcohol and drug abuse, claimed as secondary to service-
connected post-traumatic stress disorder with depression, and
that this claim is denied.
FINDINGS OF FACT
1. The veteran’s claim for service connection for alcohol
and drug abuse, claimed as secondary to service-connected
post-traumatic stress disorder with depression, was received
in January 1994.
2. VA compensation benefits, by law, are prohibited for any
disability found to be the result the veteran’s alcohol or
substance abuse.
CONCLUSION OF LAW
Service connection for alcohol and drug abuse, claimed as
secondary to service-connected post-traumatic stress disorder
with depression, is prohibited by law. 38 U.S.C.A. § 1110
(West 1991 & Supp. 1996); 38 C.F.R. § 3.310(a) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The record reflects that service connection for post-
traumatic stress disorder with depression is in effect, and
that the veteran is currently assigned a 70 percent
evaluation for this disability. The veteran seeks service
connection for alcohol and drug abuse, claimed as secondary
to service-connected post-traumatic stress disorder with
depression.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110. However, 38 U.S.C.A. § 1110,
as amended by the Omnibus Budget Reconciliation Act of 1990,
Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351,
prohibits the payment of compensation for any disability that
is the result of a veteran’s abuse of alcohol or drugs, for
claims filed after October 31, 1990. Service connection may
also be granted for disability which is proximately due to or
the result of a service-connected disease or injury.
38 C.F.R. § 3.310(a). However, under the Omnibus Budget
Reconciliation Act, it has been determined that the
provisions of 38 C.F.R. 3.310(a), involving disability that
is proximately due to or the result of a service connected
disability, have their basis in 38 U.S.C.A. § 1110. As a
result, because the authority to compensate for secondarily
service-connected disability derives from 38 U.S.C.A. § 1110,
determinations regarding secondary service connection are
also subject to the prohibition against payment for alcohol
and substance abuse disabilities. Accordingly, compensation
is prohibited for disabilities which are the result of
alcohol or substance abuse whether the claim is based on
direct service connection or, under 38 C.F.R. § 3.310(a), on
secondary service connection. Furthermore, compensation is
prohibited regardless of whether such compensation is claimed
on the basis that a service-connected disease or injury
aggravated the nonservice-connected disability. Allen v.
Brown, 7 Vet.App. 439 (1995); see also VAOGCPREC 2-97
(January 16, 1997).
The United States Court of Veterans Appeals (Court) has held
that, in cases in which the law and not the evidence is
dispositive, a claim for entitlement to VA benefits should be
denied or the appeal to the Board terminated because of the
absence of legal merit or the lack of entitlement under the
law. Sabonis v. Brown, 6 Vet.App. 426 (1994). The record
reflects that veteran’s claim for service connection for
alcohol and drug abuse, claimed as secondary to service-
connected post-traumatic stress disorder with depression, was
received in January 1994. As compensation is prohibited for
alcohol or substance abuse disabilities, whether on a direct
basis or secondary basis, for claims filed after October 31,
1990, the veteran’s claim for service connection for alcohol
and drug abuse, claimed as secondary to service-connected
post-traumatic stress disorder with depression, is denied.
38 U.S.C.A. § 1110; Sabonis v. Brown, 6 Vet.App. 426 (1994);
38 C.F.R. § 3.310(a).
Although the Board has disposed of the veteran’s claim on a
ground different from that of the RO, that is, as a matter of
law, rather than whether the veteran is entitled to prevail
on the merits, the veteran has not been prejudiced by the
Board’s decision. In deciding the veteran’s claim on the
merits, the RO accorded the veteran greater consideration
than his claim warranted under the circumstances. See
Bernard v. Brown, 4 Vet.App. 384 (1993).
ORDER
Service connection for alcohol and drug abuse, claimed as
secondary to service-connected post-traumatic stress disorder
with depression, is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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